The federal government was awarded an emergency stay in discovery proceedings by the U.S. Court of Appeals for the Second Circuit Friday, as it prepares to file a writ of mandamus in a pair of suits over President Donald Trump’s decision, announced last month in an executive order, to end the Deferred Action for Childhood Arrivals program last month.
The order in In Re: Elaine Duke 17-3345 was issued by Circuit Judge José Cabranes, ahead of a three-judge panel’s consideration of the as-of-yet unfiled mandamus request. The government has until Monday afternoon to file papers.
The move by the U.S. Department of Justice is the latest in a series of pushbacks against a pair of lawsuits in the U.S. District Court for the Eastern District of New York. The plaintiffs—a private individual, Martin Jonathan Batalla Vidal in Batalla Vidal v. Baran, 16-cv-04756, and a host of state attorneys general, led by New York AG Eric Schneiderman in State of New York v. Trump, 17-cv-05228—have moved forward with discovery in the parallel suits, overseen by U.S. District Judge Nicholas Garaufis and Magistrate Judge James Orenstein.
Even as the government sought a stay from the appellate court Thursday, Orenstein and Garaufis, in separate orders the same day, pushed discovery forward in the suits.
Both orders were related to a September order by Orenstein authorizing discovery, over the objections of government lawyers. The Trump administration was ordered to produce an administrative record and privilege log around the decisions by Department of Homeland Security Acting Secretary Elaine Duke’s order to “wind down” the DACA program. Plaintiffs argue that the government’s submission of material to satisfy the original production order was insufficient.
Orenstein’s order Thursday approved a motion, filed by Vidal’s attorney Muneer Ahmad of the Frank Legal Services Organization at Yale Law School on behalf of plaintiffs in both suits, to compel the government to produce the administrative record.
“Defendants compiled a skeletal administrative record based on an erroneously narrow standard of what the record must include,” plaintiffs stated.
On Thursday, Orenstein agreed, noting that satisfying the order means not just providing documents Duke personally reviewed, but “encompasses all documents and materials that were before the decision-makers’ agencies and the non-privileged work and recommendations’ of the decision-makers’ subordinates.”
Orenstein ordered the government to complete production by 3 p.m. on Oct. 27.
In a separate order Thursday, Garaufis refused the government’s request for a stay on all discovery and privilege log production orders. The Article III judge had previously limited the privilege log order to only DHS and DOJ materials and extended the production deadline to Oct. 20. The government argued for a stay on discovery pending a final determination on the sufficiency of the administrative record now being ordered produced by Orenstein, or, alternatively, the decision on the mandamus petition at the Second Circuit. The government claimed, according to Orenstein, that it was “in limbo, exposed to discovery but lacking the certainty of a final order.
Orenstein Thursday refused to stay the privilege-log requirement, namely because doing so would push the resolution of the district court case up against the March deadline for DACA renewals.
“While the court is mindful of the burden that the expedited discovery schedule may place on the government, this urgency is the unavoidable result of defendants’ own decision to terminate, on relatively short notice, a program directly benefiting hundreds of thousands of individuals,” Garaufis wrote.
Garaufis did, however, narrow the scope of the administrative record to material considered by U.S. Attorney General Jeff Sessions Duke and “their first-tier subordinates” in making their decisions.
The government’s request for a stay pending mandamus was also denied.
In that petition to the appellate court, the government asked for an immediate administrative stay by 9 a.m. on Oct. 20 to halt the forward momentum in the district suits. The circuit did not respond to that request ahead of the government’s requested deadline.
Acting Assistant AG Chad Readler and Deputy Assistant AG Hashim Mooppan wrote that the stay was “required to avoid significant ongoing burden and intrusion into the deliberative processes of the agency decision-maker” and that the district court’s rulings “disregard fundamental principles of administrative law and inter-branch comity that warrant this court’s exercise of its mandamus authority.”
In an opposition brief filed Thursday on behalf of the plaintiff states by Schneiderman, and signed by New York Solicitor General Barbara Underwood, reiterated Garaufis’ concern about the upcoming renewal deadline.
“[A]s that court has also noted, defendants’ requests to delay discovery in this case must be evaluated in light of their role in creating the urgency about which they now complain,” plaintiffs stated. adding that the government has already asked for, and received, “several extensions” from the district court.